State v. Aderemi

• Decision Date: 31 January 2023
• Docket Number: 2021AP1445-CR
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Ayodeji J. Aderemi, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

State of Wisconsin, Plaintiff-Respondent, v. Ayodeji J. Aderemi, Defendant-Appellant.

No. 2021AP1445-CR

Court of Appeals of Wisconsin, District I

January 31, 2023

APPEAL from a judgment of the circuit court for Milwaukee County No. 2018CF3444 JOSEPH R. WALL, Judge. Affirmed.

Before Brash, P.J., Dugan and White, JJ.

WHITE J.

¶1 Ayodeji J. Aderemi appeals his judgment of conviction entered upon a jury's verdict, for multiple counts of sexual assault of his minor stepdaughters. Aderemi argues that the State failed to file the Information of his charges in the Wisconsin electronic filing system within the statutory deadline; therefore, the trial court erred when it refused to dismiss the case. He requests an order dismissing the charges. We reject his argument that the Information was not filed within the statutory deadline accordingly, we affirm his conviction.

BACKGROUND

¶2 Our recitation of background facts focuses on the procedural issues raised in the filing of the Information; the underlying facts of Aderemi's three-count conviction are not relevant to that question. According to the criminal complaint, Aderemi was charged with four counts of child sexual assault on July 24, 2018. That same day, Aderemi made his initial appearance before a court commissioner and substantial bail was set. On August 1, 2018, Aderemi appeared before a court commissioner and requested to waive the preliminary hearing. After a colloquy with the commissioner on his understanding of what he was waiving, the commissioner accepted his decision as "knowing, voluntary, and intelligent" and bound him over for trial.

¶3 On August 6, 2018, the trial court conducted the arraignment hearing.^[1] The record reflects the following conversation:

THE COURT: Good morning, everybody. Mr. Aderemi, Good morning. It's here for an arraignment, a new [I]nformation filed.

[THE STATE:] That's correct, [y]our Honor. I did file a signed and dated [I]nformation. I provided a paper copy to counsel….

THE COURT: Okay. [Aderemi's trial counsel]?

[TRIAL COUNSEL]: Your Honor, we acknowledge receipt of a copy of the [I]nformation, waive its formal reading, and enter pleas of not guilty.

THE COURT: Okay. How would you like to schedule this?

[TRIAL COUNSEL]: I'd like to set a trial date, Judge[.]

¶4 On October 2, 2018, the court conducted a bail bond hearing. During the hearing, the following conversation happened:

[TRIAL COURT'S CLERK]: Also I have a note here that no [I]nformation was ever … filed in CCAP. If you could do that, that would be greatly appreciated."

[THE STATE]: Really? Okay. Because I-

THE CLERK: Yeah. I looked and there was an entry that said it was filed, but there's no document attached.

[THE STATE]: Okay. I will do that right away. I guess just for purposes of jurisdiction, if [trial counsel] would-maybe it was rejected because of some stupid issue with the computer-generated case number. But for jurisdictional issues, I just ask [trial counsel] acknowledge there was an Information filed that he received because I don't want there to be any issues because I'm outside of the 30 days.

THE COURT: Right. [Trial counsel], have you received the Information?

[TRIAL COUNSEL]: Judge, I have a copy without the little stamp up there. I assume it came-

[THE STATE]: Well, this is all-

[TRIAL COUNSEL]: -at the time of the prelim. Or I have a vague recollection of [the prosecutor] showing me an electronic copy and us entering a plea. So I don't see a problem at all.

THE COURT: Was there an amended Information or just one?

[THE STATE]: No, your Honor. I believe it was filed on August 6th. It was just after the preliminary hearing date. This is just a logistical nightmare for the State because I can't print out a copy until it's filed. I can't file it until he's bound over. It becomes a nightmare. I just want to make sure [trial counsel] has a copy so I don't lose jurisdiction. I shouldn't lose jurisdiction because e-file is a logistical nightmare.

THE CLERK: The defendant was arraigned on August 6th and it says that he did receive a copy of the written Information.

[THE STATE]: I will re-file an electronic copy for the file. Thank you, Madam Clerk, for pointing that out.

¶5 The final pretrial hearing was held on December 7, 2018. Nothing was noted about the Information during the hearing; however, the record reflects that the "filed" date stamped on the Information was December 7, 2018.

¶6 On January 7, 2018, the date scheduled for the start of Aderemi's trial, the court instead conducted a hearing^[2] on "the defendant's concern and essentially [a] motion … regarding the [I]nformation as to when it was filed and if we are within the time limits." Trial counsel explained the issue:

As I was preparing for trial I was reviewing documents on the E-file system. I saw nothing and the [I]nformation wasn't there. I had been given a two page copy of an [I]nformation on August 6th. And of course on the record what we do 100 times is acknowledge receipt of the copy, waive reading, and plead not guilty. That is what we did. I think it's come to light now that … somehow initiating the file process …. That process was initiated but not completed in essence until today. As I read the electronic filing statute, that is 801.18 …. That talks about the requirement of the whole E-filing system and when a certain stamp is placed and a file document is authenticated. …. But this [I]nformation apparently was in the system, waiting for someone else to I guess accept it for filing, and that just didn't happen. I don't know if it matters from what I am reading whether it is the fault of the State or a glitch in the system.

¶7 The court then commented:

According to my clerk, he looked into the matter, and the district attorney did, in fact, file it on August 6th of 2018. When I say file, I mean it loosely. It went into the [circuit court's] system. In other words, the clerks for each judge have an electronic system [through] which things are filed and they get it first. From there, they then post it to the docket. In this case … it was filed by [another Assistant District Attorney] and went into [the circuit court's] clerk's electronic system without the clerk then posting it or formally filing it onto the docket.

The trial court reviewed the docket, noting that the entry for the August 6, 2018 arraignment stated "Filed, original [I]nformation; copies served on defendant." The court stated that when one clicked on the entry for Information in the court-facing CCAP system, the Information document has a file stamp of December 7th, 2018.^[3] The trial court explained that "at that point our clerk … was able to retrieve it from [the circuit court's] clerk's electronic system and file it. Obviously, it is very odd that it would be hyperlinked on August 6th, 2018, but it was." The prosecutor and trial counsel both acknowledged handling the paper copy of the Information on August 6, 2018.

¶8 After reviewing Wisconsin law on the issue of delayed or missing Information documents, the court then considered criminal procedure under Wis.Stat. ch. 971. It concluded that § 971.05(3)^[4] was satisfied because Aderemi was delivered a signed paper copy of the Information in court. The court concluded that the Information was filed on August 6, 2018, as reflected on the docket and a paper copy served on Aderemi, and the arraignment was completed.

¶9 Trial counsel objected, arguing that unless "a hand signed" copy of the Information was "handed to your clerk in court on August 6th;" the document was not filed. He argued that the document was misdirected and was not "filed" until the trial court's clerk retrieved and accepted the document on December 7, 2018. The court turned to the publicly-accessible version of CCAP and reviewed the docket. "[T]here is a separate entry on August 6th, 2018. It says [I]nformation. So in terms of the public here, the public would have notice that there was an [I]nformation in the case and that it is filed." The court then concluded it would continue the trial as planned the next day.

¶10 The trial took place from January 8 through 11, 2019, ending with a guilty verdict returned by the jury on three of the four charges and an acquittal of count one of the Information. On March 14, 2019, the trial court ordered concurrent sentences on the three counts, with count two and count four being a term of nineteen years of imprisonment divided into fourteen years of initial confinement and five years of extended supervision and count three being a term of fifteen years of imprisonment divided into ten years of initial confinement and five years of extended supervision.

¶11 Aderemi appeals.

DISCUSSION

¶12 Aderemi raises a single argument on appeal, a fundamental and procedural question of whether the Information in his case was filed within thirty days in compliance with Wis.Stat § 971.01(2).^[5] That statute provides that "[t]he [I]nformation shall be filed with the clerk within [thirty] days after the completion of the preliminary examination or waiver thereof …. Failure to file the [I]nformation within such time shall entitle the defendant to have the action dismissed without prejudice." Id. Aderemi argues that the Information was not filed until December 7, 2018, meaning it was filed more than thirty days after the preliminary hearing on August 1, 2018; therefore, his conviction must be dismissed without prejudice as a matter of law.

¶13 The State argues that the Information was filed in compliance with the law and that any irregularities affected only form not substantive law. The State relies on Wis.Stat. § 971.26, which provides that "[n]o indictment, [I]nformation, complaint or warrant shall be invalid, nor shall the trial, judgment or other...